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Mealey's Elder Law

  • July 15, 2019

    Divided Michigan Panel Finds IRA Is Not Asset Of Man’s Estate

    DETROIT— A 2-1 Michigan appeals panel on July 2 upheld a probate court judge’s decision to award summary judgment to a woman who was the beneficiary of her father’s individual retirement account (IRA), finding that the proceeds of the account were not an asset of the estate because the decedent did not take steps to change the beneficiary status of his one daughter after opening a new account (In re:  Estate of William Patrick McNeight, No. 340777, Mich. App., 2019 Mich. App. LEXIS 3741).

  • July 15, 2019

    Rhode Island High Court: Breach Of Fiduciary Duty Claim Against Trustee Not Barred

    PROVIDENCE, R.I. — In a decades old siblings dispute over amendments to an inter vivos trust and gifts of interest in a family limited partnership, the Rhode Island Supreme Court ruled June 28 that a middle daughter’s breach of fiduciary duty and related claims against the youngest daughter were not barred by laches where there was no showing that their deceased mother’s testimony would have been favorable to the youngest daughter (Wenda Branson v. Marion P. Louttit, et al., Nos. 2017-149 & 2017-150, R.I. Sup., 2019 R.I. LEXIS 111).

  • July 12, 2019

    Connecticut High Court: No Need To Impose Parent’s Decisions In Visitation Order

    HARTFORD, Conn. — The Connecticut Supreme Court on July 2 ruled that a trial court’s order granting grandparents’ petition for visitation over the objection of a fit custodial parent did not have to include a provision requiring them to abide by all of the parent’s decisions regarding the care of the child during the visitation (Diane Boisvert, et al. v. James Gavis, Nos. SC 20049 & SC 20053, Conn. Sup., 2019 Conn. LEXIS 182).

  • July 12, 2019

    South Dakota Supreme Court: No Claim For Tortious Interference With Inheritance

    PIERRE, S.D. — South Dakota doesn’t recognize a claim for tortious interference with inheritance or expectancy of inheritance, the South Dakota Supreme Court ruled July 2, finding that there are other remedies available for a man challenging his disinheritance (In re Thomas Briggs v. Judith Briggs, No. 28647-SRJ, S.D. Sup., 2019 S.D. LEXIS 65).

  • July 11, 2019

    D.C. Panel Remands Dispute Over Disabled Individuals Seeking Community Care

    WASHINGTON, D.C. — A dismissal by a District of Columbia federal judge of allegations that the district violated federal law when it refused to transition physically disabled individuals to community-based care after 90 consecutive days in a nursing facility was reversed and remanded July 5 by the District of Columbia Circuit U.S. Court of Appeals (Ivy Brown, et al. v. District of Columbia, No. 17-7152, D.C. Cir., 2019 U.S. App. LEXIS 20058).

  • July 11, 2019

    2nd Circuit:  Worker Who Accepted Severance After RIF Can’t Bring Age Bias Claims

    NEW YORK — The severance package a worker accepted following a reduction-in-force (RIF) barred his subsequent claims of age discrimination, a Second Circuit U.S. Court of Appeals panel ruled July 9, rejecting the worker’s claims that the separation agreement was invalid under the Older Workers Benefit Protection Act (OWBPA) (Amadou Sowe v. Pall Corporation, No. 18-2695, 2nd Cir., 2019 U.S. App. LEXIS 20249).

  • July 10, 2019

    6th Circuit Affirms No New Trial After Verdict For Board In Age Bias Suit

    CINCINNATI — A Tennessee federal court didn’t err when it excluded testimony in an age bias lawsuit and then denied a motion for a new trial following a jury verdict for the employer in the lawsuit brought by a former educator, a Sixth Circuit U.S. Court of Appeals panel ruled July 3 (Ron Hosse v. Sumner County Board of Education, No. 18-5832, 6th Cir., 2019 U.S. App. LEXIS 19903).

  • July 9, 2019

    Judge Finds Fired Employees Spoliated Evidence, Dismisses Age Discrimination Suit

    FORT SMITH, Ark. — Two employees fired for data security flaws failed to establish that their terminations were due to age discrimination, an Arkansas federal judge ruled July 3, granting summary judgment to their former employer after also finding that the ex-employees intentionally spoliated evidence by encrypting and deleting text messages (Brian Herzig, et al. v. Arkansas Foundation for Medical Care Inc., No. 2:18-cv-02101, W.D. Ark., 2019 U.S. Dist. LEXIS 111296).

  • July 8, 2019

    5th Circuit:  Intake Questionnaire With State Doesn’t Constitute Timely EEOC Filing

    NEW ORLEANS — An employee’s intake questionnaire filed with a state agency indicating retaliation and bias that was later forwarded to the Equal Employment Opportunity Commission was an insufficient charge of discrimination as it did “not contain a clear and concise statement of facts alleging unlawful employment practices,” a Fifth Circuit U.S. Court of Appeals panel ruled on July 3, upholding dismissal of the employee’s claims of age, national origin and disability bias (Jose Carlos Caycho Melgar v. T.B. Butler Publishing Company, Incorporated, et al., No. 18-41080, 5th Cir., 2019 U.S. App. LEXIS 19920).

  • July 8, 2019

    Colorado Panel Allows Adult Adoptee’s Wrongful Death Suit On Behalf Of Late Mother

    DENVER — A woman adopted as an adult can be considered a decedent’s heir in asserting a wrongful death claim on behalf of her late mother, a Colorado appellate court panel said June 20 in reversing summary judgment and remanding for further proceedings a lawsuit claiming negligence by health care providers (Marty Ferguson, individually and as Personal Representative of the Estate of Ann Marilyn Ferguson, deceased, v. Spalding Rehabilitation, LLC, et al., No. 18CA1067, Colo. App., Div. IV, 2019 Colo. App. LEXIS 919).

  • July 8, 2019

    Kentucky Panel Again Rejects Arbitration Request By Rehab Facility

    FRANKFORT, Ky. — In a June 19 holding, the Kentucky Court of Appeals found that a power of attorney (POA) designating a decedent’s nephew as attorney-in-fact if the decedent’s brother was “unable or unwilling” to serve as attorney-in-fact did not confer upon the nephew the power to bind the decedent’s estate to an arbitration agreement (New Heritage Hall Health & Rehab. Ctr. v. Coffman, No. 2015-CA-001220-MR, Ky. App., 2019 Ky. App. Unpub. LEXIS 444).

  • July 3, 2019

    Great-Niece Asks U.S. Supreme Court To Weigh In On Will Contest Case

    WASHINGTON, D.C. — A California attorney filed a pro se petition for a writ of certiorari in the U.S. Supreme Court on June 17 asking the nation’s high court to decide the fate of her great-aunt’s estate in a matter that she says raises issues “at the forefront of the public debate regarding Elder Abuse” (Lisa Fisher v. Bessie Huckabee, et al., No. 18-1562, U.S. Sup.).

  • July 3, 2019

    $25M Tinder Age-Bias Class Settlement Granted Final Approval

    LOS ANGELES — A federal judge in California granted final approval on June 19 of a class settlement valued at approximately $25 million reached in a class lawsuit accusing a smartphone-based dating application of discriminatory age-based pricing in violation of the Unruh Civil Rights Act and California’s unfair competition law (UCL) (Lisa Kim, et al. v. Tinder, Inc., et al., No. 18-3093, C.D. Calif., 2019 U.S. Dist. LEXIS 108041).

  • July 2, 2019

    Employer To High Court: ADEA Covers Only Employees, Not Applicants

    WASHINGTON, D.C. — The U.S. Supreme Court should not take up an appeal addressing the reach of the Age Discrimination in Employment Act (ADEA) as all circuits that have addressed the issue agree that the ADEA covers only employees, not job applicants, an employer told the high court in its June 27 brief in opposition (Dale E. Kleber v. CareFusion Corporation, No. 18-1346, U.S. Sup.).

  • July 2, 2019

    Age Bias Collective, Class Claims Against Volkswagen Survive Motion To Dismiss, Strike

    CHATTANOOGA, Tenn. — A federal judge in Tennessee on June 28 denied a motion by two Volkswagen subsidiaries to dismiss or strike age discrimination collective and class claims filed by an American worker following a reorganization and public statements about “younger and slimmer” management levels (Jonathan Manlove, et al. v. Volkswagen Aktiengesellschaft, et al., No. 18-145, E.D. Tenn., 2019 U.S. Dist. LEXIS 108330).

  • July 1, 2019

    U.S. Supreme Court Won’t Review Dispute Over Taxing Trusts

    WASHINGTON, D.C. — The U.S. Supreme Court on June 28 denied a petition for a writ of certiorari filed by Cynthia Bauerly, the commissioner of the Minnesota Department of Revenue, who asked that the high court find that the state be allowed to tax the out-of-state administrators of four trusts that were created by a Minnesota man in 2009 and who later released power over the trusts after they became irrevocable in 2011 because the trusts have significant connections with the state (Cynthia Bauerly v. William Fielding, et al., No. 18-664, U.S. Sup.).

  • July 1, 2019

    Maryland Appeals Panel Finds No Agency Relationship Between Father, Daughter

    ANNAPOLIS, Md. — The Maryland Court of Special Appeals on June 27 vacated a trial court’s ruling granting a nursing home’s motion to compel arbitration of a woman’s survival action suit, finding that an arbitration provision in the admission documents she signed was unenforceable because its terms were unconscionable and because there was no agency relationship between her and her father at the time he was admitted (Marcia Rankin, et al. v. Brinton Woods of Frankfort LLC, No. 525 September Term 2017, Md. Spec. App., 2019 Md. App. LEXIS 515).

  • June 28, 2019

    U.S. High Court Will Decide Limited Federal-Sector Age Bias Question

    WASHINGTON, D.C. — The U.S. Supreme Court on June 28 granted a petition for a writ of certiorari filed by a U.S. Department of Veterans Affairs pharmacist, but limited it to a question on the required proof of age bias under the Age Discrimination in Employment Act (ADEA) federal-sector provision (Noris Babb v. Secretary, Department of Veterans Affairs, No. 18-882, U.S. Sup.).

  • June 28, 2019

    Nursing Home Sued For Distribution Of Elder Resident’s Nude Photo

    BUTLER, Pa. — A former female resident of a senior living facility on June 25 filed a complaint in a Pennsylvania court, accusing the staff of taking a photo of her nude and then distributing that photo on social media (R.K., as attorney-in-fact for S.D. v. Paramount Senior Living at Seven Fields LLC, No. n/a, Pa. Comm. Pls., Butler Co.).

  • June 26, 2019

    Rhode Island High Court In Sibling Row: Bank Accounts Not Estate Assets

    PROVIDENCE, R.I. — A divided Rhode Island Supreme Court on June 17 upheld findings by a state superior court that bank accounts opened by a decedent that named two of her children, but not all four, as owners of the accounts do not qualify as estate assets (Lizbeth Larkin, et al. v. Michaela Arthurs, et al., Nos. 2017-56, 2017-183, R.I. Sup., 2019 R.I. LEXIS 100).